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Jamiyatram Gaurishankar Joshi Vs. Umiyashankar Pranshankar Joshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 321 of 1940
Judge
Reported in(1941)43BOMLR699
AppellantJamiyatram Gaurishankar Joshi
RespondentUmiyashankar Pranshankar Joshi
DispositionApplication dismissed
Excerpt:
.....section 73--rateable distribution--'same judgment-debtor,' meaning of--decree against judgment-debtors personally and another decree against them in representative capacity--whether such decrees are against 'same judgment-debtors.';a decree against a person individually and a decree against that person as representative of a deceased person are not decrees against 'the same judgment-debtor' within the meaning of section 73 of the civil procedure code, 1808, so as to entitle the holders of the two decrees to rateable distribution.;the expression 'the same judgment-debtor' in section 73, civil procedure code, 1908, denotes identity of individuality and identity of character or interest. decrees obtained against the same individual, but in different capacities, may be regarded as not..........73 of the civil procedure code, 1908. there were two decrees, the first being against three persons personally and a fourth person whose existence can be ignored, i think, and the second against the same three persons as the heirs of their deceased father. the question which arises is whether a decree against a person individually and a decree against that person as representative of a deceased person can be held to be decrees against the same judgment-debtor within the meaning of section 73 so as to entitle the holders of the two decrees to rateable distribution.2. mr. c.k. shah for the applicant relies on a recent decision of the calcutta high court in hemendra nath chaudhuri v. east bengal commercial bank (1936) i.l.r. 63 cal. 923. in which the court held that in such a case.....
Judgment:

John Beaumont, C.J.

1. This is a revision application in execution, which raises a question under Section 73 of the Civil Procedure Code, 1908. There were two decrees, the first being against three persons personally and a fourth person whose existence can be ignored, I think, and the second against the same three persons as the heirs of their deceased father. The question which arises is whether a decree against a person individually and a decree against that person as representative of a deceased person can be held to be decrees against the same judgment-debtor within the meaning of Section 73 so as to entitle the holders of the two decrees to rateable distribution.

2. Mr. C.K. Shah for the applicant relies on a recent decision of the Calcutta High Court in Hemendra Nath Chaudhuri v. East Bengal Commercial Bank (1936) I.L.R. 63 Cal. 923. in which the Court held that in such a case the decrees were against the same judgment-debtor. On the other hand, Mr. J.C. Shah relies on decisions of other High Courts in which the opposite view has been taken. The question does not seem to have come before this Court.

3. When there is a conflict of authority upon a question, I like to consider the matter in the first instance apart from authority. Section 73 of the Civil Procedure Code provides, so far as material, that where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor, the assets shall be rate-ably distributed among all such persons. 'Judgment-debtor' is defined in Section 2(10) as meaning any person against whom a decree has been passed or an order capable of execution has been made. The argument for the applicant is that the language of Section 73 is quite, clear, that a decree against a particular person in his individual capacity and another decree against: that person in a representative capacity are nevertheless both decrees against the same person, and, therefore, against the same judgment-debtor within the definition.. I agree that, if one gives the most literal meaning to the word 'judgment-debtor,' that result must follow. For the respondent it is argued that a person, who may be an individual or a corporation, can for legal purposes be regarded sometimes as two persons. I am not prepared to accept that view, and I always deprecate the practice, which is sometimes followed, of making the same person a party twice over where he represents different interests. But at the same time the same person may hold different characters, and he may be a party to litigation in different capacities, and I apprehend that it would always be open to the Court to allow a party to appear and argue in different capacities by different counsel, if that course is necessary to avoid one aspect of the matter not being put before the Court. Therefore, the Court recognizes, and certainly the framers of the Civil Procedure Code have recognized, that the same person may appear in various capacities, and it would seem to me not to be unduly stretching the language of Section 73 to say that the expression 'the same judgment-debtor' denotes identity of individuality and identity of character, and that two decrees obtained against the same individual, but in different capacities, may be regarded as not obtained against the same judgment-debtor. In considering whether to give a literal or a less literal meaning to Section 73, I think that any Court must have regard to the consequences which are likely to follow from either construction. It seems to me that the grossest injustice and absurdity may follow from holding that decrees against the same person must always be regarded as decrees against the same judgment-debtor for the purposes of Section 73. One may have creditors of estate of A, which is solvent, being compelled to share the assets of that estate with the creditors of estate B, which is insolvent and possesses no assets, merely because there is a common trustee of the two estates. It is not difficult to imagine the confusion which might arise in the case of a corporation sole, like the Official Assignee of Bombay, who may have decrees passed against him as representative of many different estates. No doubt, if the language of an Act of Parliament is sufficiently clear, the Court can only give effect to it, however inequitable or unjust the result of such a construction may seem to the Court to be. But if the Court can avoid construing an Act of Parliament so as to cause what the Court regards as injustice, in my opinion, it certainly ought to do so. I think it is not unduly stretching the expression 'the same judgment-debtor' to say that it denotes identity, not only of individuality but of character or interest.

4. Coming now to the authorities, no doubt the Calcutta High Court in Hemendra Nath Chaudhuri v. East Bengal Commercial Bank {supra) has adopted a strict construction of the expression 'the same judgment-debtor,' and has held that, if the individual against whom two decrees are obtained is the same, then one cannot look further and consider whether his interests or character are the same. In so construing the Act the Court has to some extent purported to follow the decision of this Court in Govind Abaji jakhadi v. Mohoniraj Vinayak Jakhadi (1901) I.L.R. 25 Bom. 494. That was a case in which there was one decree against a deceased person and another decree against his legal representative, and this Court held that inasmuch as the decrees were against two distinct individuals, they could not be said to be against the same judgment-debtor, although, the two individuals represented the same estate. On the other hand, the High Court of Madras has taken a different view, and has held that in such a case the judgment-debtor is the same. The most recent case is Rama Krishnan Chettiar v. Viswanathan Chettiar (1935) I.L.R. 59 Mad. 93, F.B. We are not concerned with that question, and indeed we are bound by the decision of this Court. But it is one thing to say that decrees against two distinct individuals cannot be said to be decrees against the same judgment-debtor, and quite another to say that decrees against the same individual, though in different capacities, must be regarded as decrees against the same judgment-debtor.

5. Other High Courts have taken the same view of Section 73 as I do. In Rama Krishnan Chettiar v. Viswanathan Chettiar (supra) Mr. Justice Pandrang Row in the course of his judgment says (p. 98):--

It has also been held, and here too there is no dispute,, that even though the person against whom the decrees were passed is the same in name, Section 73 will not apply unless that person occupied the same character in all the decrees; for instance, where one decree was passed against A in his personal capacity and another against him as heir of P, the two decrees are not against the same judgment-debtor.

6. The same view has been taken by the Allahabad High Court in Bhola Nath v. Maqbul-un-nissa (1903) I.L.R. 26 All. 28. and by the Lahore High Court in Sadhu Ram v. Dhanpat Rai-Telu Ram (1937) I.L.R. 18 Lah. 637 and there is a dictum to the same effect in Balmer Lawrie & Co. v. Jadunath Banerjee (1914) I.L.R. 42 Cal. 1 The balance of authorities is in favour of the view which, I, think, is the right one of the construction of the expression 'the same judgment-debtor.' We must hold, therefore, that in this case there is no right of rateable distribution, and that was the view taken by the lower Court.

7. The revision application, therefore, will be dismissed with costs.

Macklin, J.

8. I agree.


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